Rush v. Barnhart (432 F. Supp. 2d 969, 2006)

ORDER ADOPTING REPORT AND RECOMMENDATION

HOVLAND, Chief Judge.

The above-entitled action was referred to Magistrate Judge Charles S. Miller, Jr., for the issuance of a Report and Recommendation. Magistrate Judge Miller issued his Report and Recommendation on February 10, 2006, wherein he recommended that the case be remanded to the Commissioner for an award of adult SSI benefits in an appropriate amount beginning from when the plaintiff would first become eligible for such benefits and for a determination of whether Childhood Disability Benefits should be awarded after applying the sequential evaluation criteria for Childhood Disability Benefits, or for an award of benefits in an appropriate amount.

On February 27, 2006, the Commissioner filed an objection to the Report and Recommendation. See Docket No. 15. The Commissioner asserts that in light of the conflicting evidence in this case and the need to complete the administrative record, the matter should be remanded for further administrative proceedings.

The Court has carefully reviewed the record along with the Report and Recommendation and finds that Magistrate Judge Miller’s Report and Recommendation is thorough and persuasive. Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 14). The Defendant’s Motion for Summary Judgment (Docket No. 12) is DENIED and the Plaintiffs Motion for Summary Judgment (Docket No. 8) is GRANTED. The decision of the Commissioner is reversed and the matter is remanded to the Commissioner for an award of adult SSI benefits in an appropriate amount beginning from when the plaintiff would first become eligible for such benefits, and for a determination of whether Childhood Disability Benefits should be awarded after applying the sequential evaluation criteria for Childhood Disability Benefits or for an award of benefits in an appropriate amount. See 42 U.S.C. § 405(g) (remanding pursuant to sentence four).

The Clerk of Court is directed to enter judgment accordingly.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

MILLER, United States Magistrate Judge.

Plaintiff, Zeely Rush, seeks judicial review of the Social Security Commissioner’s denial of her application for Childhood Disability Benefits (“CDB”) under Section 202(d)(1) of Title II of the Social Security Act, 42 U.S.C. § 402(d)(1), and Supplemental Security Income (“SSI”) under Sections 1602 and 1614(a)(3)(A) of Title XVI of the Social Security Act, 42 U.S.C. § 1381(a). Chief Judge Daniel L. Hovland has referred this matter to the undersigned for preliminary consideration.

I. BACKGROUND

A. Procedural History

Rush initially filed an- application for CDB benefits on December 30, 1999. This claim was denied by the Social Security Administration (“SSA”) on March 17, 2000, and was not administratively appealed.

Rush then filed her current application for CDB and SSI benefits on April 29, 2002. (Tr. 15). Her current application was denied and she requested a hearing before an Administrative Law Judge (“ALJ”), which was held on April 8, 2003, in Bismarck, North Dakota. Following the hearing, the ALJ issued a decision on October 27, 2003, finding Rush was not disabled as defined by the Social Security Act and not entitled to CDB and SSI benefits. (Tr. 15-30).

Rush administratively appealed the ALJ’s decision on October 27, 2003. (Tr. 6) As part of her appeal, she submitted a detailed rebuttal to the decision and offered additional supporting evidence, some of which appears not to have been considered by the ALJ. (Tr. 183-203) The Appeals Council made Rush’s rebuttal evidence part of the agency record (Tr. 9), but denied her appeal on February 19, 2005. (Tr. 6). Thereafter, Rush sought judicial review of the Commissioner’s decision from this court on April 22, 2005. See 42 U.S.C. § 405(g).

B. Background evidence

Rush was born on June 6, 1984. She ■ was 38 days from her 18th birthday when she filed her current claim for social security benefits and she was 19 years old when the Commissioner issued his final decision. (Tr. 15, 16, 30). Rush claims she is disabled based upon a combination of the following problems: chronic pain syndrome/fibromyalgia; morbid obesity; migraine headaches; mild anemia; elevated sedimentation rate, gastroesophageal disease; and a sleep disorder. (Tr. 65, 223)

At the time of the hearing before the ALJ in April 2003, Rush was living with her mother in a two-story house in a small North Dakota community located approximately 80 miles northwest of Bismarck, North Dakota. Rush’s mother, who was a social worker, was exposed to a chemical agent in 1999 and is on disability suffering from congestive cardiomyopathy. Both Rush and her mother on are on public medical-assistance; they do not have a car and neither of them drive. Rush was the subject of sexual abuse at young age by her father. She is the product of bi-racial, African American and Caucasian marriage. (115,119,190,191, 229)

In 1996, Rush began experiencing some pain in her abdominal area and other health issues. At that point, these were not debilitating. In the fall of 1998, when Rush was in the 9th grade, Rush began experiencing chronic pain in her chest area that gradually spread out and became progressively worse, including vomiting. She attended school on the days that she felt better during the first semester of the 1998-1999 school year. During the second semester her attendance dropped off substantially. She managed to complete the 9th grade, but there is some reference in the record to the fact that she missed approximately 50 days of school. She returned to school for her sophomore year in the fall of 1999, initially for half days, but soon quit attending because she felt she could not tolerate even part days. She completed some of her 10th grade class work over the internet, but eventually abandoned regular schooling and was working to compete her GED at home at the time of the hearing in April 2003 under the guidance of school district officials. (Tr. 21,188, 224-225, 236, 239)

Prior to getting sick, Rush stated she liked school, was a good student, and was active in basketball, volleyball, and band. (Tr. 88, 115,187, 236, 239) But, by the time of the hearing in 2003, she was mostly housebound because of chronic pain and fatigue. Occasionally, she would venture out for short periods with friends or her mother when she felt up to it, or for doctor visits, which she found very exhausting, especially when having to travel to Bismarck. Rush’s mother recounted one occasion when Rush wanted to ride with her friends to Bismarck, but they ended up turning around and coming home because Rush couldn’t take it. (Tr. 190-191, 235, 238-239) Further, even when at home, Rush and her mother stated that Rush was not able to perform many of the household chores and was limited to fixing some of the meals and cleaning her own room, which she would do at slow pace. (Tr. 79-80, 234^-235) At the hearing, Rush testified she thought she could walk a couple of blocks on her good days without stopping, but only a block on her bad days. (Tr. 229)

Rush started seeing Dr. Jan Riemers, a local general-practice physician in Hazen, sometime in 1998 or 1999, after Riemers had treated her in the emergency room for her pain. (Tr. 185) As discussed in more detail later herein, the ALJ places great reliance upon a number of the medical records from the 1999 time frame, including those of Dr. Riemers, to draw the conclusion that Rush has not been compliant in following through with recommended treatment and to call into question the veracity of the testimony of her and her mother with respect to the degree of pain Rush suffers and the impact of it upon her functional capacity. In fact, the ALJ “bolds up” and underlines certain parts of this 1999 medical evidence in the “rationale” portion of his decision. (Tr. 24-25)

Unfortunately, most of the records upon which the ALJ relies from the 1999 time frame are not part of the record that has been furnished to the court. Further, the portions of the medical evidence that are in the record from the 1999 time frame were supplied by Rush to the Appeals Council following the ALJ’s decision and call into question a number of the specific findings made by the ALJ. Also, it cannot be determined at this point how much of the evidence supplied to the Appeals Council the ALJ actually saw, much less what weight he may have accorded to it. The same is true for the state agency DDS physician who conducted a paper assessment with respect to Rush’s physical residual functional capacity (“RFC”).

It appears from the references in the ALJ’s decision to Dr. Riemers’ records (which again are not part of the record) that Dr. Riemers’ principal diagnosis was that Rush was suffering from fibromyalgia, but that she also believed depression and Rush’s weight were significant issues during the time period she was seeing her. (Tr. 20-21)

The extent to which Rush’s weight was a concern when she first started seeing Dr. Riemers cannot be determined because of the lack of records. However, there is some evidence that Rush’s obesity problems began when she first started having chronic pain (Tr. 116), worsened during the time she was seeing Dr. Riemers, and continued to get worse thereafter. During the hearing, Rush testified that a couple of years previous she thought her weight was around 250 lbs. (Tr. 221) If her weight was that low, it probably was in the 1998 time period and either before or when she first started seeing Dr. Riemers. This is because the ALJ in his decision indicates that her weight was 308 lbs. in April 1999, although this cannot be confirmed from the record. (Tr. 20)

By May 2000, however, and after Rush had stopped seeing Dr. Riemers, her weight had climbed to 339 lbs. based on a historical note in a later-dated record. And, on April 3, 2001, an attempt was made at a Bismarck clinic to weigh Rush and her weight at that time was recorded as being in excess of 350 lbs. along with a note that a more accurate measurement was not possible because the clinic’s scales did not go higher than 350 lbs. (Tr. 128) Later, while at the Mayo Clinic, more definitive measurements were made of Rush’s height and weight, along with her body mass index. In June 2001, the Mayo Clinic described Rush as being “massively obese” (Tr. 119) and recorded her weight at 361.56 lbs, her height at 69.2 inches (just under 5' 10"), and her body mass index at 52.944 KB/M2. (Tr. Ill, 113) As discussed in more detail below, this put Rush at the higher end of the “extremely obese” category-much greater than the 95th percentile. (117) Finally, as noted below, there are additional records that indicate that Rush’s weight increased even more after her evaluation at Mayo with the last recorded weight being 363 lbs.

In any event, it appears that Dr. Riem-ers referred Rush to physical therapy during 1999. As discussed in more detail below, the ALJ places significant emphasis on statements made in the initial physical therapy records that Rush showed signs of improvement initially and suggests from that she was not compliant. (Tr. 21, 25) However, the physical therapy records are also not part of the record. Further, there appears to be later physical therapy records that may be inconsistent with the inferences drawn by the ALJ from the early records and it cannot be determined now whether the ALJ had all of the records. (Tr. 198-199)

During the summer of 1999, Dr. Riem-ers also referred Rush to at least two specialists. In his decision, the ALJ references an evaluation made on June 12,1999, by an unnamed pediatric physiatrist (most likely Dr. Dilla) for Rush’s chronic pain. (Tr. 20) The ALJ again placed significant weight upon the records of this examination in the “rationale” portion of his decision when he noted that the doctor ordered physical therapy, recommended minimization of absences from school, and reactivation of a more active and social lifestyle, but that there was no indication that claimant pursued this recommendation. (Tr. 25) However, again, the report of this physiatrist is not part of the record. Further, as discussed later herein, several of the inferences drawn from the report are questionable in light of the evidence of Rush’s later unsuccessful physical therapy attempts (Tr. 198-199) and the fact that Rush did attempt to return to school in the fall of 1999 in accordance with the recommendations that she do so, but soon stopped going because she felt she could not tolerate the activity. (Tr. 21, 224-225, 236, 239)

Dr. Riemers also believed that Rush was suffering from “out-of-control” depression — at least according to the ALJ’s decision. It appears that Rush and her mother did not agree and were indicating that chronic pain and fatigue were the biggest problems. In any event, Dr. Riemers referred Rush to Dr. David Brooks, a clinical neuropsychologist, for a psychological and chronic pain management assessment. (Tr. 180)

The record before the court does contain Dr. Brooks’ report, but only because it was supplied to the Appeals Council by the claimant and it is not clear whether the ALJ had this report available to him as part of the 1999 medical records when he made his decision. (Tr. 204-207) The ALJ does make reference to the referral, but does not detail the findings and conclusions (as he did for the unnamed physia-trist who saw Rush during the same time period) and the fact of the referral might have been gleaned by the ALJ from Dr. Riemers’ records. (Tr. 20)

Dr. Brooks saw Rush on June 24, 1999. At that time, he conducted a clinical interview, administered an MMPI, and had Rush complete a pain assessment battery. He concluded, (1) that Rush’s pain and headaches fluctuated from very little on some days to “extremely high” on others, (2) that Rush’s complaints of pain and severe headaches (to the point of causing nausea at times) were credible in that Rush was “not magnifying her symptoma-tology” and that she “often experiences quite significant chronic pain,” (3) that Rush was not depressed, and (4) that there were indications that Rush was coping reasonably well under the circumstances, in spite of appearing to others as coping poorly. (Tr. 204-207)

Dr. Brooks recommended that (1) Rush attempt to attend school on the days that she felt better or could tolerate the pain (but also concluded that it was not unreasonable that she not attend or that she come home early when the pain was not tolerable), (2) that she attempt some physical conditioning under the supervision of the doctor to see how much she could tolerate, and (3) that she be referred to a neurologist for further exploration of the headaches and a physical medicine physician for addressing the pain management. With regard to possible physical medicine physicians, Dr. Brooks made several recommendations. One of the persons he recommended was was Dr. Martire, who, as discussed below, Rush ultimately consulted and continued to see at least until January 2003. (Tr. 204-207)

In her rebuttal to the ALJ filed with the Appeals Council, Rush complains about the fact that the ALJ ignored Dr. Brooks’ report. She also claims that Dr. Riemers was upset by the conclusion reached by Dr. Brooks that Rush was not severely depressed. It appears that conflict with Dr. Riemers led Rush’s mother to seek a change with respect to Rush’s primary-care physician, which apparently had to be approved by public assistance. (Tr. 185)

Rush then started seeing Dr. Denise McDonough of Medcenter One Family Medical Center South in Bismarck. Dr. McDonough’s initial records have also not been included as part of the court’s record. The first records that are included begin in January 2001, but these records reference earlier visits. From the records that are available, it appears that Dr. McDonough’s diagnosis was that Rush was suffering from chronic pain, compounded by her weight, and that her working diagnosis for the etiology of the pain was fibromyalgia. (Tr. 130-136, 201)

After Rush started seeing Dr. McDon-ough her condition did not improve. Dr. McDonough stated in her January 4, '2001, chart that Rush was still having “a lot of problems with pain.” She also noted that Rush was not using a whole lot of medicine for pain, but stated “[s]he is really intolerant to most of the medications.” She then added that Rush and her mother had been reluctant to follow through with a number of the recommendations from the specialists that she had referred them to. The ALJ emphasized this point in his decision as an example of Rush’s non-compliance. (Tr. 25,135-136)

The records of these other specialists (ie., referrals prior to January 1, 2001, by Dr. McDonough) are not part of the record, however, so it is not possible to evaluate this somewhat cryptic comment. The only information with respect to these referrals is a historical note in a later record which indicates (1) that one of the doctors to whom Rush was referred in 2000 was Dr. Lynne Peterson, who diagnosed Rush as having chronic pain syndrome, fibro-myalgia, depression, an elevated sedimentation rate, and possible sinusitis, and (2) that a further referral was made to another psychiatrist (Dr. Goodman) that resulted in a diagnosis that Rush did not have severe depression consistent with the earlier determination made by Dr Brooks. (Tr. 128)

When the ALJ pointed to the somewhat ambiguous reference in Dr. McDonough’s records about Rush and her mother not wanting to follow through with other referred specialists, the ALJ neglects to mention with respect to this time frame (and which seems contrary to the inference of non-compliance) is that Rush’s mother wanted Rush sent to the Mayo Clinic because she was concerned there was something else going on that was causing Rush’s problems that the local doctors had not been able to diagnose. Also, the referral to the second psychiatrist resulted in the same diagnosis that Dr. Brooks had made and to Rush and her mother seemed unnecessary. (Tr. 129,135,190)

By January 2001, Dr. McDonough was willing to refer Rush to the Mayo Clinic. However, before public assistance would pay for an examination at the Mayo Clinic, Rush was required to get a second opinion that a referral to Mayo was necessary. (Tr. 136) She was then referred back to Dr. Peterson for this evaluation, which took place on April 3, 2001. In her patient history, Dr. Peterson noted that Rush had dropped out of school since the last time she saw her and that she was currently taking classes over the internet because staying in class was too hard because of her pain and poor concentration. She also notes that Rush continued to have sleeping problems and had migraine headaches.

During her physical examination of Rush, Dr. Peterson observed that Rush had multiple tender points, but that her joints were without synovitis, her lungs were clear, and she had no lymphadenopa-thy. She described Rush’s affect as flat. Ultimately, she concluded that Rush was still suffering from chronic pain syndrome/fibromyalgia, some depression, and that she continued to have an elevated sedimentation rate of an unclear etiology and agreed with a referral to the Mayo Clinic. During that visit, Rush and her mother asked about whether prescribing a narcotic for the pain would be appropriate. Dr. Peterson, however, was reluctant to do so given Rush’s age. As discussed later herein, the request for more effective pain medication seems consistent with Rush’s complaints of continued chronic pain. (Tr. 128-129)

Rush visited the Mayo Clinic in June of 2001 for tests and a diagnosis. At that time, she met with several different specialists. (Tr. 105, 109, 111, 114, and 116) She first met with Dr. Stephanie Starr, who examined Rush on June 19, 2001, and then arranged for the other consultations. The physical examination showed Rush weighed 361.34 pounds, which gave her a body max index (BMI) of 52.6 kg/m2 and placed her in much greater than the 95th percentile in terms of obesity. The report of the examination noted that Rush was generally an alert and interactive young girl that was pleasant and who smiled and laughed frequently and was not in any acute distress. The report indicated that Rush described some discomfort in the midline, lower thoracic, and mid lumbar back. The report further stated that Rush had some “decreased range-of-motion when asked to put her right ear to her shoulder but was able to improve the range-of-motion after ‘popping’ her neck,” and she had no swollen joints. (Tr. 116— 117)

In Dr. Starr’s impressions and plan, she stated she was concerned about Rush’s gastroesophageal reflux disease. In regard to the complaints of chronic back and musculoskeletal chest pain, she noted that Rush had a history of a normal bone scan and that she should be tested further for chronic pain and possible fibromyalgia. Dr. Starr concluded physical exercise would play a key role in any recovery because of Rush’s obesity. (Tr. 117-118)

Rush next visited Dr. Jean Perrault with regard to the possibility of gastroesopha-geal reflux disease, and Dr. Perrault found that Rush possibly suffered from chronic reflux esophagitis and maybe even Barrett’s esophagus. Further tests were ordered to evaluate this concern. (Tr. 119-20)

On June 20, 2001, Rush met with Dr. Carrie Ditmer of the Mayo Clinic for a psychological evaluation. In Dr. Ditmer’s report, she stated that Rush had suffered a significant amount of functional impairment as a result of pain syndrome. The doctor strongly recommended to Rush and her mother that Rush work with their school in an effort to have Rush involved in the academic setting “as much as possible.” Dr. Ditmer opined that Rush presented a “number of depressive symptoms including irritability, sleep and appetite disturbance, as well as anhedonia.” The doctor noted, however, that she believed these “symptoms were more an adjustment reaction rather than a true depressive disorder.” Dr. Ditmer gave Rush numerous educational handouts dealing with nonpharmacological pain management strategies and encouraged follow ups with either herself, or local doctors, but then concluded that there were no local doctors available. (Tr. 114-115)

Rush next met with Dr. Thomas Mason at the Mayo Clinic for an evaluation of her complaints of chronic pain. Dr. Mason’s physical examination indicated there was no evidence of pain on range of motion, no skeletal misalignment, and no reflex problems. He did note, however, that Rush had trigger points for fibromyalgia in the intra-scapular, supra-scapular, anterior chest wall, and trochanteric bursa regions. His ultimate diagnosis was the following:

1. Mild anemia;

2. Chronically elevated sedimentation rate;

3. Non-inflammatory musculoskeletal pain, fibromyalgia;

4. Marked obesity; and

5. Family history of inflammatory bowel disease.

His report also discussed in some detail the elevated sedimentation rate, but he was unable to provide any real explanation for why it was elevated, noting that it could be the result of some infection process and there might be some link to her obesity. (Tr. 111-112)

Rush met with Dr. Starr to review the evaluations of the several doctors that evaluated Rush during her week at the Mayo Clinic. She discussed with Rush and her mother the results of the examinations and the various tests that were performed. Dr. Starr stated that the Clinic did not find an etiology that explains Rush’s chronic pain. She said, based on Dr. Mason’s evaluation, there is no evidence for inflammatory process at this time; however, it was difficult to explain her anemia and elevated sedimentation rate. Dr. Starr recommended that Rush start a multivitamin with iron because of her anemia, along with a calcium supplement. She recommended that Rush should work on gentle reconditioning and a step-wise plan for returning to school and more physical activity. She emphasized this “may take a prolonged period of time.” (Tr. 107-108)

The last doctor Rush met with at the Mayo Clinic was Dr. David Nash to discuss conditioning and pain management. During a physical examination, Rush also told Dr. Nash that she has some tenderness over the midline cervical and upper thoracic spine and some tenderness in the para-spinal areas as well as over the trapezius muscles, but Dr. Nash did not identify any trigger points — contrary to the finding made earlier by Dr. Mason. He found that Rush had excellent range of motion without complaints of pain. Dr. Nash diagnosed Rush with chronic pain syndrome and morbid obesity and recommended that Rush start a daily exercise program' and resume attending school. (Tr. 105)

Following the evaluation at the Mayo Clinic, Rush continued to consult with her primary-care physician, Dr. McDonough. Although the records are not clear (and may be incomplete), it appears that Dr. McDonough referred Rush to Dr. Pedro Mendoza, a sleep specialist with Medcen-ter One in Bismarck. Dr. Mandoza saw Rush on August 1, 2001, and concluded that most of Rush’s sleeping problems were due to sleep onset and sleep maintenance insomnia, which he believed to be related to:

1) Fibromyalgia and significant pain.

2) Psychophysiologieal insomnia with the possibility of her early life experience with sexual molestation at the age of 5 years of age by her father.

3) Poor sleep hygiene habits in view that prior to going to bed she is either watching television or on the computer.

He also stated that there might be an upper airway obstruction during the night that was causing some of the problems. He suggested implementing a sleeping technique that will be adjusted over time with a follow-up visit to look into circadian rhythm abnormalities and/or restless leg syndrome. He also indicated that sleep apnea (a. common condition in people suffering from, obesity) was also another possibility. (Tr. 125-126)

Rush returned to Dr. McDonough on September 27, 2001. At that time, Rush reported that she was continuing to have significant pain. She reported that she had attempted to follow the recommendations of Dr. Mendoza regarding her; sleep problems and insomnia and that the recommendations had not worked. She also reported having gone a number of days with just one or two hours sleep and that her back pain increased during this period. It was also noted that Rush’s weight appeared to have increased and that she now weighed 363 lbs. Dr. McDonough’s continued working diagnosis was possible fibromyalgia and she referred Rush for physical therapy at the Hazen Hospital, urged her to continue with the chiropractor since this was providing some relief, prescribed some pain medication, and indicated she would refer Rush to see someone for chronic pain management since that had not been tried. (Tr. 132)

Rush again returned to Dr. McDonough on February 28, 2002, for a recheck. At that time, Rush reported continued problems with pain and that she was also having irregular periods. In the history portion of the chart, McDonough noted that she had seen Dr. Killen for chronic pain (it does not appear these records are included in the court’s record) and that there had been a referral to “peds rehematology” at the University of Minnesota (although it is not clear whether there was any such visit and Dr. McDonough may have confused this with the Mayo Clinic). Dr. McDon-ough notes with regard to her past history that “everybody has come back saying she has chronic pain syndrome.” She further discusses Rush’s intolerance to a number of the medications that have been prescribed and also the fact that medications to assist with sleep have been unsuccessful and that Rush has not been sleeping very well. She further noted that Rush appears to have gained even more weight. Finally, she noted that she and others have encouraged more exercise and stretching as well as weight loss and notes that “up to this point she has not done the above,” but does not discuss whether she has been physically able to and does not mention the results of the physical therapy at the Hazen Hospital, much less whether she even had those records. (Tr. 130-131)

Dr. McDonough conducted a physical examination on February 28, 2002. She observed that Rush was not in acute distress and that she did not have any redness or swelling in the joints. However, she noted she was tender in the upper and low back and that she had diffuse areas of tenderness in the medial elbows and knees. Dr. McDonough’s diagnosis continued to be fibromyalgia or chronic pain syndrome. Further, even though a request was made by Rush and her mother, she indicated that she did not want to put Rush on any narcotic medication for chronic pain. She urged water therapy and exercise. She also indicated that she would refer her to Dr. Martire, a pain specialist to address the chronic pain. (Tr. 130-131)

Rush saw Dr. Martire at the Spine & Pain Center (Spine Center), P.C., in Bismarck for the first time on March 28, 2002. In the report of his examination, Dr. Mar-tire set forth a detailed history along with a summary of a number of the more pertinent prior evaluations. He also reviewed the prior pain medications that had been tried that either were ineffective or caused side effects. He also reviewed with Rush her physical therapy efforts. (Tr. 153-154) He also noted the following:

Overall, the patient indicates that her chronic pain is worsening along with the associated sleep problems and fatigue. She does not have any definite numbness or tingling into her upper or lower extremities, but will experience “coldness” of her hands and feet at times. The patient and her mother also report that she is clumsy at times and will occasionally drop things. The patient and her mother are very interested in any additional diagnostic or treatment recommendations at this time.

(Tr. 154)

This is at least the second time that Rush complains about occasional coldness in her hands and extremities prior to the hearing. (Tr. 243-246) She also remarked about her hands turning blue occasionally at the Mayo Clinic. (Tr. 117) Her mother indicates this was also noted in biofeedback notes and the records of Dr. Peterson, which may also be true. As noted before, the record certified to the court does not include any of the biofeedback records and only part of Dr. Peterson’s records. (Tr. 192)

The significance of this is that Rush testified to the problems with coldness in her hands and clumsiness at the hearing. Later, in his opinion, the ALJ indicated that these complaints had never before been presented to an examining physician and inferred that they had been made up for the purpose of claiming disability. (Tr. 26) The ALJ was clearly wrong about the complaints having not been presented to an examining physician.

Dr. Martire conducted á physical examination of Rush during his first visit with her on March 28, 2002. While Rush did not appear to be in any acute distress and did not exhibit any obvious pain symptoms, Dr. Martire detected multiple points of palpatory tenderness that are detailed in his report. He also indicated concern over Rush’s elevated sedimentation rate that he stated was not a characteristic of fibro-myalgia, but was a significant finding given Rush’s age. He indicated that this, coupled with generalized muscle pain and tender points, could be indicative of a muscle disorder that should be evaluated, but which also may not manifest itself until some time in the future. He recommended a number of further diagnostic studies. His overall diagnosis was the following:,

1. Generalized myalgias

2. Elevated sedimentation rate of unclear etiology.

3. Sleep dysfunction.

4. Fatigue.

5. Thoracic pain.

(Tr.153-156)

Rush returned to the Spine Center a number of times following her initial consultation and evaluation for additional tests and to try different combinations of pain medicines. For example, the Spine Center performed a battery of Electrodiagnostic studies on Rush and the results came back normal, ruling out any neuromuscular disorder. (Tr. 147) She also had an MRI at Medcenter One on her thoracic spine, which also came back normal. (Tr. 158) Throughout her course of treatment and evaluation by Dr. Martire, his diagnoses of chronic pain possibly related to fibromyal-gia, insomnia, and chronic fatigue remained essentially the same and none of the drug combinations that he tried were successful. (Tr. 133-156)

The ALJ in his opinion gives as an example of alleged non-compliance by Rush with treatment recommendations the fact that the last treatment record he had for Dr. Martire was in September 2002 and that this suggested no further followup. (Tr. 26). However, as discussed later herein, it appears that Rush did in fact continue to see Dr. Martire on a periodic basis through January 2003 and that, after approximately fifteen separate visits, he concluded that there further consultation was not necessary because the pain medications that he had tried over this period had not worked. (Tr. 187)

As already noted, Rush was referred to the therapy department at the Hazen Hospital (also-referred to as the Sakakawea Medical Center). It appears that Rush was seen there a total of fourteen times between March 1999 and December 2001. While the therapy records are not part of the court’s record even though the ALJ obviously relied upon at least a portion of the 1999 records, Rush supplied to the Appeals Council with both a typed letter and a handwritten note from one of the persons involved in administering physical therapy to Rush. The handwritten note states that the ALJ had taken part of the physical therapy records “out-of-context” in his decision. The typed letter summarizes the physical therapy efforts from 1999 through 2001, and then goes on to state that Rush was not able to participate in much of the physical therapy because she was in too much pain and that she did not respond to any of the pain-reducing modalities. The author stated that this can be typical of people with fibromyalgia. (Tr. 198-199)

In addition to the medical records, the paper record before the ALJ also included several questionnaires from Rush and from family and friends that describe Rush’s condition and her claimed limitations. One of the questionnaires was completed by a family friend, who was a registered nurse and who had known Rush and her family for about 13 years. The responses she gave to the questions supported Rush’s claims of physical disability, including her chronic pain, fatigue, her inability to go to school and to otherwise function normally. (Tr. 82-85) No mention of this was made by the ALJ in his decision.

On June 26, 2002, a Physical Residual Functional Capacity Assessment (Physical RFC Assessment) was performed by a state medical consultant. The state agency physician concluded that Rush could (1) occasionally lift and/or carry twenty (20) pounds and frequently lift and/or carry ten (10) pounds, (2) could stand and/or walk with normal breaks for at least two hours in an eight hour workday, (3) sit with normal breaks about six hours in an eight hour workday, and (4) push and/or pull without limitation, except for the lift and carry exceptions. The reviewing physician concluded that Rush does have fibromyal-gia with trigger points, but that her allegations of pain, limitation on range of movement, and not being able to do much were only partially credible. He concluded, that Rush’s condition was compromised by her obesity and lack of ambition and that her condition “did not compromise her ability to perform her ADL’s.” (Tr. 166)

The Physical RFC Assessment, however, was only a paper, checklist review based on medical records. The examiner did not personally examine Rush nor did he refer her for actual physical testing of exertion capacity. In fact, none of the medical records before the court indicate that any actual physical testing of Rush’s capacity for exertion has ever been done. Finally, as discussed later herein, it cannot be determined what records were submitted to the state reviewer who conducted the paper Physical RFC Assessment, and, given the problems of the incomplete record before the court, there is a concern that the reviewer may not have had all of the pertinent records. (Tr. 161-68)

Rush also had a paper psychiatric review by a State medical consultant. The medical consultant found that Rush’s mental impairments were not severe, but that she had coexisting nonmental impairments and affective disorder. The affective disorder was related to the chronic pain. The only functional limitation from a psychiatric standpoint that the medical consultant found was a mild limitation in maintaining concentration, persistence, or pace. (Tr. 169-179)

B. Hearing before the ALJ

The hearing before the ALJ was held on April 8, 2003. Rush appeared in person along with her mother, Cheryl Rush, but was not represented by counsel. (Tr. 218) Also appearing at the hearing was Dr. David Perry, a vocational expert. Id.

The ALJ informed Rush the hearing was to determine whether or not she has a condition, or combination of conditions that prevents her from doing her past relevant work, or the work in the national economy. (Tr. 219). The ALJ told Rush she had the right to be represented at the hearing. He stated:

There should have been information sent to you about your right to be represented. There are — it’s my duty to make sure that you understand, fully understand your rights along that line. There are agencies that represent people here free of charge, if you qualify for their services. There are attorneys’ there are non-attorneys that appear here regularly representing people who charge only if you’re successful in pursuing the claim. It’s not mandatory that you be represented, it is a right that you have. If you would like to seek representation we will continue the hearing one time, to give you that opportunity. As I stated, it’s not mandatory that you be represented, you may proceed on your own today if you wish. But of course you would be waiving your right to be represented for purposes of this hearing. What’s your wish?

[Rush]: I wish to continue today.

(Tr. 219). The ALJ told her that because she was claiming benefits as a child and an adult, they needed to address disabilities relating to both age groups. (Tr. 220). He then asked her again, “Now knowing that, do you still want to be on your own toda”y? Id. She responded, “Yeah, yes.” Id.

Rush testified generally about a combination of medical conditions that she claims prevented her from completing high school and that now prevents her from working, including chronic pain syndrome/fibromyalgia, morbid obesity, chronic fatigue, migraine headaches, mild anemia, an elevated sedimentation rate, acid reflux, and sleep disorder. She testified she can walk a couple of blocks without stopping on her good days and maybe a block when she is having pain. (Tr. 229). She opined that sitting was “uncomfortable” if she did it for a long period of time. (Tr. 231). Her mother testified that her limitations have completely changed her life and that no medications have helped her cope with the pain. (Tr. 236-38). They both testified, essentially, that she was not capable of working.

Vocational expert Dr. David Perry testified about the Dictionary of Occupational Titles and the requirements of the jobs listed therein. The ALJ told Dr. Perry there was no work history for Rush and then asked him:

So hypothetically, assume an 18-year old, with a tenth grade education, that can sit for six hours in an eight-hour day. Stand and walk in combination for two. Lift five to ten pounds occasionally. Now what level are we at?

Dr. Perry answered that it was a sedentary level. The ALJ then asked, “So that person would be able to [do] sedentary, but what skill level would you be looking at for that hypothetical person?” Dr. Perry opined that a person who has never worked before and had not completed high school would be limited to unskilled work. (Tr. 242)

The ALJ further asked Dr. Perry if “moderate concentration limitation due to pain” was added to the scenario, whether that would change anything. Dr. Perry responded that would eliminate some jobs, but that there are still some unskilled jobs that do not require significant concentration. .Id. The ALJ asked Dr. Perry if he had examples of that work, including the concentration limitation, the hypothetical person could do. Dr. Perry stated:

A couple of examples would be that of a telephone quotation clerk. Another example would be that of a toy stuffer, a person who actually puts the insides into stuffed toys. Another example is that of a dial marker, this is somebody that works on electronic equipment, but basically marking dials. These positions in this region, there are 2,800 jobs in putting toys together, this toy stuffer position. There are 470 jobs for the dial markers.

(Tr. 243)

The ALJ then asked whether for this type of unskilled work that the employee would have to work at the hours set by the employer. Dr. Perry then responded:

That’s correct. You need to be there pretty much on a full-time basis, eight hours per day, for five days a week. The schedules are generally set by the employer and there’s not a lot of flexibility to those schedules.

(Tr. 243) He then testified that normal breaks would be 15 minutes breaks in the morning and afternoon. The ALJ then asked what the absence tolerance would be and Dr. Perry responded that on an average it would be two days per month for unskilled work and that persons who could not meet that restriction generally speaking “would not be competitively employed.” (Tr. 243-244).

After the above testimony was elicited from Dr. Perry, Rush told the ALJ and Dr. Perry that she had pain in her hands when doing repetitive work, that she was clumsy, and that she could not sit for periods of six to eight hours a day. Specifically, she stated that she could not write more than a page without her hands starting to hurt. Dr. Perry then stated that a lot of the unskilled work required repetitive use of the hands. (Tr. 245)

In addition to the witness testimony, the ALJ also received a number of exhibits at the hearing. Unfortunately, the exhibits were not separately identified and are simply referred to in the transcript as being the exhibits in the exhibit file. (Tr. 220) This is significant because, as discussed below, the ALJ in his decision relies heavily upon a number of medical and other records from the time period prior to the SSA’s denial of Rush’s first claim on March 17, 2000, that are not part of the record presented to this court and that may also not have been part of the records received at the hearing.

C. ALJ’s decision denying benefits

The ALJ concluded that Rush suffered from chronic pain syndrome related to fi-bromyalgia aggravated by morbid obesity. While he found these conditions to be “severe” within the meaning of SSA’s regulations, he concluded that the impairments did not meet or medically equal one of the listed impairments that amount to a per se qualifying disability. (Tr. 29) Consequently, since Rush had no past relevant work history, he proceeded with familiar step five analysis of determining whether there are jobs in the national economy that Rush could perform in terms of Rush’s eligibility for adult SSI benefits.

Although confronted with evidence that Rush was unable to complete high school allegedly because of her chronic pain and fatigue, that she weighed 350 pounds, or more, and was near the high end of the highest category of obesity (ie., “extreme obesity”), that she had been mostly housebound for several years, that she never worked (or even learned how to drive a ear), the ALJ determined that Rush was capable of performing a significant range of sedentary work that exists in significant numbers in the national economy. (Tr. 29-30) The ALJ reached this conclusion by making a determination regarding Rush’s RFC and then posing questions to a vocational expert based on his RFC determination.

More specifically, the ALJ concluded that Rush was capable of lifting five pounds frequently and ten pounds occasionally; sitting for up to six hours in an eight-hour shift with normal breaks; standing/walking up to 2 hours in a workday with normal breaks; and performing work that does not involve high levels of concentration. (Tr. 29) He also implicitly concluded, based upon the limitations imposed by the vocational expert which he apparently accepted, that Rush was capable of doing this work on a day-in-and-day-out basis with an allowance of only two absences per month.

In making his RFC determination, the ALJ relied primarily upon the paper Physical RFC Assessment made by the state DDS physician because there is no evidence of actual testing of Rush’s physical capabilities and exertion levels and no evidence of an opinion by any other medical professional that Rush is capable of working on a daily basis at the pace and persistence required of the jobs the ALJ concluded she could perform. Further, in discounting the testimony of Rush and her mother that Rush’s condition does not permit her to work on any sustained basis, the ALJ (in the “rationale” portion of his decision) listed fourteen “bullet-point” items of evidence (in most cases merely inferences from the evidence) that he concluded suggested a “theme of non-compliance with treatment recommendations for unknown or unclear reasons.” A number of the treatment recommendations had to do with Rush not carrying through with recommendations that she lose weight and engage in more physical activity. (Tr. 24-28)

In addition, the ALJ further concluded that several of the limitations claimed by Rush and her mother in terms of Rush’s clumsiness, lack of dexterity, and problems with her hands were offered solely for the purpose of avoiding a finding of non-disability and were not credible. Finally, he accused Rush’s mother of enabling Rush’s condition and possibly sabotaging her recovery, including stating at one point the following:

This is a young girl who needs to get out in the community and interact and socialize with others of her own age. Instead her mother has allowed her to quit school and primarily stay in her room or at home and focus on her pain and be inactive, thus increasing her weight which in turn could reasonably be expected to impact on her pain and immobility.

(Tr. 26)

The ALJ concluded overall that Rush was not entitled to adult SSI benefits. He disposed of the claim for childhood benefits in one sentence by stating that he was adopting the findings of the State Agency medical consultants that the evidence showed no limitation in cognitive/communicative functioning; social functioning; personal attainment, or concentration persistence, or pace; or that her motor functions for her age were less than indicated. (Tr. 28)

D. The appeal to the Appeals Council and additional submitted evidence

Following the ALJ’s decision denying benefits, Rush appealed the decision to the Appeals Council. As part of the appeal, Rush and her mother submitted a fifteen-page, single-spaced statement that point-by-point challenges the ALJ’s decision. (Tr. 184-197) This joint statement was accompanied by other documents and records supporting a number of the points made in rebuttal to the ALJ. (Tr. 198-215)

The following is summary of the more salient points made by Rush and her mother in their joint statement to the Appeals Council, some of which have already been discussed:

• They vociferously object to what they considered was the ALJ’s implicit conclusion that they had made up and orchestrated Rush’s illness just to obtain disability benefits. Likewise, they also strongly object to the ALJ’s statement that Rush’s mother had fostered and enabled Rush’s condition and interfered with her successful treatment. With respect to both claims, they give a detailed explanation for why the ALJ was wrong. (Tr. 198-215)

• They discuss in detail why the ALJ was wrong when he concluded there were indications Rush had not been compliant with treatment recommendations. While the entire rebuttal should be consulted, the following summarizes the more pertinent points made in response to specific points raised by the ALJ:

• physical therapy — In response to the ALJ’s reliance upon portions of 1999 physical therapy records as evidence of non-compliance with recommended treatment, they state Rush did follow through in attending physical therapy, not only in 1999, but also in the years 2000 and 2001. They state she simply was not able to tolerate much of the therapy because of her chronic pain and back this up with a letter and handwritten note from the physical therapist that has already been mentioned and that is discussed in more detail below. (Tr. 192-193)

• exercise and stretching — In response to the suggestion that Rush has not followed through with recommendations for exercise and stretching, they say that Rush has done this primarily at home (other than the physical and hydrotherapy that she has attended), but she has been limited in what she can do by her chronic pain and fatigue. (Tr. 193)

• school attendance — In response to the ALJ’s charge that Rush’s mother enabled her condition by allowing her to stay at home and that they had not been compliant with recommendations in the spring and summer of 1999 that she attempt to return to school, they state that Rush’s mother made Rush go to school on many days, even when she was not feeling well, because that was what Dr. Riemers had recommended and that Rush did return to school in the fall of 1999, but, after making the attempt, simply could not handle it. They also stress that Rush has not given up on schooling in that, at the time of the submission of their joint statement, Rush was working with local school officials to complete her GED and that she had applied for vocational rehabilitation and has been accepted. (Tr. 185-186)

• hydrotherapy — They state Rush followed through in attending hydrotherapy sessions in Bismarck, but this was difficult because of the distance and transportation problems and that, after trying it for several months, any benefits were outweighed by the negative impact on her condition caused by the travel. (Tr. 189)

• chiropractic treatment — They state Rush, in fact, went regularly for chiropractic treatment for two years and that the acupuncture was beneficial in reducing her migraine headaches to the point where it is no longer as significant an issue. They further state that, when the migraines became less frequent, she quit going to the chiropractor because the continued treatments were not giving her any significant relief for her chronic body pain. (Tr. 188)

• biofeedback — They say the ALJ took statements from the bio-feedback records out-of-context and failed to note other statements in the records indicating the sessions were not providing any significant pain relief and that she should be discharged from the sessions. (Tr. 191-192)

• in-patient pain program recommended by Dr. Riemers — In response to the ALJ’s statement that they had not complied with Dr. Riemers’ recommendation that Rush enroll in an in-patient pain treatment program, they state Dr. Riemers recommended two programs, one they could not afford, and that public assistance would not pay for, and one Rush was not eligible for because of her age. They state Dr. Riemers later confirmed these facts. They also emphasize that Rush did, in fact, follow through on other referrals made by Dr. Riemers and that they also independently sought other assistance. (Tr. 189)

• use of the drug Stadol — The ALJ refers to a note in a medical record that Rush obtained some pain relief from the drug Stadol and then claimed that she testified untruthfully at the hearing when she stated that she did not get any significant pain relief from the drugs that had been prescribed. Rush and her mother state the ALJ failed to recognize that Stadol is classified as an opiate and addicting drug and that the doctors would not prescribe this routinely for Rush because of her young age and the concern she might become addicted. The point they make is that Rush’s answer was in response to what the doctors were willing to routinely prescribe. (Tr. 188)

• sleep issues — They state that Rush attempted to comply with recommendations regarding sleep habits, but without any real success. They state that isolated references in the records to TV watching and computer use were taken out-of-context in terms of the efforts that were made with respect to compliance. They also state that the ALJ focused on a mention of caffeine in one of the medical records, but he did not ask them about this so he was not aware that Rush had stopped drinking pop with caffeine for more than a year with no change in her symptoms. (Tr. 193)

• medical consultations after September 2002 — In response to the ALJ’s conclusion that there was no follow up with Dr. Martire because the last record he had was in September 2002, they state that, in fact, Rush continued to see Dr. Martire through January 2003 for a total of appoximately 15 separate visits from March 2002 through January 2003. They further state that Dr. Martire finally concluded that there was nothing more he could do for her in terms of finding a combination of drugs that would deal with her chronic pain. (Tr. 187)

• Also, in response to the suggestion by the ALJ that there was non-compliance with treatment recommendations, Rush and her mother more generally emphasize all the efforts they have made to find a solution to Rush’s chronic pain and fatigue, including seeking second opinions in Bismarck and then to the Mayo Clinic and the fact that they had to make many trips to Bismarck (80 miles distant), and elsewhere, to see numerous doctors, which has been difficult and time-consuming given that they do not drive and have to depend upon public transportation from Hazen that only runs a couple of times a week. (Tr. 190-191)

• They discuss in more detail the background of how Rush got sick and the fact that her chronic pain (which began to get significantly worse during her freshman year of high school) preceded her significant weight gain. (Tr. 193-194) They also discuss in more detail that, prior to getting sick, Rush was regular in her school attendance and very active physically, including swimming, riding bike, playing T-ball, and playing both volleyball and basketball in school and in summer leagues. However, after she got sick, she could no longer handle this physical activity. (Tr. 186-187, 193-194)

• They discuss the fact that none of the doctors have been able to find an answer as to why Rush’s sedimentation rate remains elevated and the fact that the doctors have been concerned about this and believe it may relate somehow to her current sickness. (Tr. 190,195-196)

• They again emphasize the reasons why Rush is not able to tolerate the physical activity required to work at the level the ALJ concluded she could work. (Tr. 195-196)

In addition to their detailed statement, Rush and her mother also submitted several other items of evidence as • follows:

• The letter and handwritten note from one of the persons who was involved in Rush’s physical therapy, which has already been discussed. (Tr. 198-199).

• A “To Whom it May Concern” letter from Dr. McDonough, Rush’s current primary physician, dated August 1, 2002, stating that Rush has a diagnosis of fibromyalgia and that she has not been able to attend school for complete days. (Tr. 201)

• A letter from a State of North Dakota rehabilitation counselor indicating that Rush has qualified for rehabilitation services. (Tr. 202)

• An “end-of-year” school record dated May 21, 2002, that reflects the results of a meeting attended by Rush’s mother, one of her instructors, the school principal, and a special-education case manager. The record is signed by the case manager and evidences the fact that Rush was still working with school officials while at home to complete a GED. The letter also indicates that the school officials were cognizant of Rush’s condition. In relevant part the letter states: Zeely’s medical problems have grown worse since January 2002. She has been in great pain, very little sleep, and has a difficult time focusing on academic activities.....The team agreed to take a break over the summer with the hopes that Zeely’s medical condition improves. The team will convene late August to discuss Zeely’s health condition and setting up a schedule to complete her GED.

(Tr. 203)

• The report of Dr. Brooks as already discussed. (Tr. 204-207)

• Several articles on fibromyalgia. (Tr. 208-215)

The Appeals Council ordered that Rush’s memorandum response and the other evidence be made a part of the record. (Tr. 9). The Appeals Council then denied the appeal on the basis that the information supplied did not provide a basis for changing the ALJ’s decision because “the medical evidence you submitted does not indicate a new or worsening impairment not previously evaluated by the Administrative Law Judge in the decision that found you capable of a range of sedentary work activity.” (Tr. 6-7) However, this clearly was not the point of Rush’s appeal. A fair reading of her statement on appeal was that she was challenging the decision on the grounds of bias on the part of the ALJ, failure to develop a proper record, abuse of discretion, errors of law, and the decision not being supported by substantial evidence. The Appeals Council did not address any of these points. (Tr. 6-8)

II. APPLICABLE LAW

A. Standard of review

The scope of this court’s review is limited in that it is not permitted to conduct a de novo review. Rather, the court looks at the record as a whole to determine whether the Commissioner’s decision is supported by substantial evidence. Ellis v. Barnhart, 392 F.3d at 993. Substantial evidence is less than a preponderance, but more than a scintilla of evidence. Nelson v. Sullivan, 966 F.2d 363, 366 n. 6 (8th Cir.1992); Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992). It is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Nelson v. Sullivan, 966 F.2d at 366 n. 6 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842(1971)).

Under the substantial evidence standard, it is possible for reasonable persons to reach contrary, inconsistent results. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.1994). Thus, the standard “embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal.” Id. Consequently, the court is required to affirm a Commissioner’s decision that is supported by substantial evidence—even when the court would weigh the evidence differently and reach an opposite conclusion. Id.

In conducting its review, the court is required to afford great deference to the ALJ’s credibility assessments when the ALJ has seriously considered, but for good reason has expressly discounted, a claimant’s subjective complaints, and those reasons are supported by substantial evidence based on the record as a whole. See Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999); Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir.1993). The Eighth Circuit has stated, “Our touchstone is that a claimant’s credibility is primarily a matter for the ALJ to decide.” Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir.2003).

Nonetheless, the court’s review is more than a search for evidence that would support the determination of the Commissioner. The court is required to carefully consider the entire record in deciding whether there is substantial evidence to support the Commissioner’s decision, including evidence unfavorable to the Commissioner. Ellis v. Barnhart, 392 F.3d at 993.

B. Law governing eligibility for adult benefits

“To be eligible for disability insurance benefits, a claimant has the b